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Thread: Judicial power, nullification of unconstitutional laws challenged by we the people

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    Judicial power, nullification of unconstitutional laws challenged by we the people

    Randy Barnette, The Volokh Conspiracy - More evidence that the “judicial power” included the power to nullify unconstitutional laws

    "... I am prepared to defend the high ground: the original meaning of the “judicial power” included the power to declare laws “null and void” and, as a co-equal branch of government, the concurrence of the judiciary on the constitutionality of a law is needed when the law is properly challenged by a member of We the People."

    http://www.washingtonpost.com/news/v...tutional-laws/

    Includes link URL to Monte Python's Dead Parrot sketch VIDEO. Barnette, "A null and void law is like a dead parrot (if you have read this far, you deserve a reward)."
    Last edited by Nightmare; 06-06-2015 at 06:16 AM.
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    Regular Member sudden valley gunner's Avatar
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    Interesting read. Seems like Patrick Henry was spot on as he was on so many points.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Quote Originally Posted by sudden valley gunner View Post
    Interesting read. Seems like Patrick Henry was spot on as he was on so many points.
    I think it was a bit cheezy on Barnette's part to include John Marshall's views.

    It was Marshall who wrote Marbury v Madison. And, Marshall was personally involved in the controversy that gave rise to the case, but did not recuse himself. Further, Marshall was a staunch Federalist. And, he was strongly opposed to Thos. Jefferson. I don't recall Marshall, a Federalist, saying anything against the Sedition Acts--like whether it was unconstitutional to make it illegal to criticize the federal government. The acts were repealed by a later Congress, not Marshall's Supreme Court.

    With all that said, I tend to think the argument is a lot easier to settle.

    If one accepts that compulsory government is legitimate, and that a small percentage of the population has the power as "We the People" to inflict a federal government on everybody else, and the constitution those few people put into force treats the branches as co-equal, then SCOTUS must be able to review the constitutionality of any law.

    Forbidding review of constitutionality would force SCOTUS to rule in ways it considered unconstitutional. Basically, by ruling a law unconstitutional, SCOTUS is saying, "We ain't gonna take any cases founded on this law. We will not permit it in our court room."

    If SCOTUS is co-equal with the other two branches, it has to be that way.

    The problem, I think, is less whether SCOTUS is co-equal and thereby independent, than whether SCOTUS is co-equal and can equally screw the rest of us as badly as the other two branches. Statists will be statists.
    Last edited by Citizen; 06-07-2015 at 11:26 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Regular Member sudden valley gunner's Avatar
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    Yea I don't really think there is implied powers the powers are spelled out or they are not.

    Judicial review is an overreach. I don't see the Courts as an "equal" branch of government. I don't see the president as that either. The most powerful branches are the senate and house , the other branches are just supposed to be able to check.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    UPDATE! More evidence, ... you may not be persuadable by evidence.

    Last edited by Nightmare; 06-07-2015 at 06:41 AM.
    I am responsible for my writing, not your understanding of it.

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    Regular Member sudden valley gunner's Avatar
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    The courts rule when the law is brought to them in a suit. I think ruling before a suit is the overreach. Although if they did it to protect liberty I won't loose sleep over it.
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Quote Originally Posted by sudden valley gunner View Post
    Yea I don't really think there is implied powers the powers are spelled out or they are not.

    Judicial review is an overreach. I don't see the Courts as an "equal" branch of government. I don't see the president as that either. The most powerful branches are the senate and house , the other branches are just supposed to be able to check.
    I understand.

    I read somewhere that the true separation of powers was not executive/legislative/judicial, but the bicameral legislature: a house and a senate. The author argued that the executive and judicial were not separate in order to restrict power, but to make efficiency. That is to say, when the king is executive, legislative, and judicial branches, there is a certain degree of too-much for that king to administer/oversee himself; thus, three branches for efficiency. After the efficiency is established, the separation of powers, according to that author, is the division between senate (six year terms) and the house (two year terms). The idea being the senate would represent the upper-crust, the house--everybody else.

    I don't know that I agree with that author. But, he's got a bit of a point about efficiency and separation into senate and house. Makes me wonder, anyway, about the constitutional convention, and all their wrangling over whether large states would overwhelm less populous states.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

  8. #8
    Regular Member sudden valley gunner's Avatar
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    Quote Originally Posted by Citizen View Post
    I understand.

    I read somewhere that the true separation of powers was not executive/legislative/judicial, but the bicameral legislature: a house and a senate. The author argued that the executive and judicial were not separate in order to restrict power, but to make efficiency. That is to say, when the king is executive, legislative, and judicial branches, there is a certain degree of too-much for that king to administer/oversee himself; thus, three branches for efficiency. After the efficiency is established, the separation of powers, according to that author, is the division between senate (six year terms) and the house (two year terms). The idea being the senate would represent the upper-crust, the house--everybody else.

    I don't know that I agree with that author. But, he's got a bit of a point about efficiency and separation into senate and house. Makes me wonder, anyway, about the constitutional convention, and all their wrangling over whether large states would overwhelm less populous states.
    That would be an interesting read. I just sort of gathered it by looking at who the legislature, is , who has the power for declaring war, etc.

    It seems the other branches usurped power very quickly. Courts make law in case law, president decides which law to enforce or makes law by executive orders....

    The idea of having a check to stop, the house and senate if they didn't check each other was great in theory. Just didn't work out.

    Of course the whole document a brilliant attempt at limiting government failed. Fondly thinking of a Spoonerism right now.....
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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